In the Matter of the Application of KOKEN
[NO NUMBER IN ORIGINAL]
Supreme Court of Oregon
214 Ore. 357;
329 P.2d 894;
1958 Ore. LEXIS 253
September 3, 1958, Argued
September 24, 1958
PRIOR HISTORY:
[***1]
Petition for Review of Decision of Board of Governors of Oregon State Bar
Denying Application for Reinstatement of Temporary Certificate.
DISPOSITION: Petition denied.
COUNSEL:
Gunther F. Krause, Portland, argued the cause and filed a brief for petitioner.
Arno H. Denecke, Portland, argued the cause and filed a brief for Oregon State Bar.
JUDGES: In Banc. O'Connell, J.
OPINIONBY: O'CONNELL
OPINION:
[*358]
[**894] This matter is before us on a petition for a review of the decision of the
Board of Governors of the Oregon State Bar denying the petitioner's application
for
reinstatement of a
temporary
license to practice law in Oregon which was
canceled by this court on June 24, 1953. The opinion of this court in the proceeding
which culminated in the cancellation of the petitioner's
temporary
license is reported in
In re William E. Koken, 198 Or 659, 258 P2d 779 (1953). The facts relevant to the disciplinary action taken in that case are fully set
forth in that opinion. They may be summarized as follows: On July 10, 1951 the
petitioner, a member of the Bar of the District of Columbia, was granted a
temporary
license to practice law in the state of Oregon for a period of two years.
[***2] This action was taken pursuant to Rule F of the Rules For Admission of
Attorneys in Oregon. Under that rule the applicant may be granted a permanent
license after the expiration of the two-year period if it is established that he has
not been guilty of unprofessional conduct. On January 9, 1952 the Oregon State
Bar filed a complaint against the petitioner, charging him with
issuing a number of
worthless checks. The petitioner was
found guilty of these charges by the trial committee of the Bar, by the Board of Governors,
and by this court. The petitioner's
temporary
license was
canceled and permanent admission to the Bar of this
[**895] state was denied him. On October 4, 1957 petitioner filed a petition with the
Board of Governors for
reinstatement of the
temporary
license which had been
canceled. The petition was denied on January 24, 1958 and on February 7, 1958 a petition
to review the Board's action was filed in this court. Petitioner prays that
the decision of the Board of Governors be set aside, that his
temporary
[*359]
license be immediately
reinstated, or if immediate
reinstatement is not deemed proper, that he be granted leave to take the Bar examination
[***3] for
admission to practice law in Oregon.
The petitioner claims that he has rehabilitated himself and that he is now a
fit person to
practice law in this state. In support of this claim he points out that the conditions
which gave rise to the
misconduct resulting in his
disbarment no longer exist. He states that during the period that he was
issuing
worthless checks he was addicted to the use of alcohol but that he no longer uses
intoxicating beverages except that occasionally he drinks a glass of beer in
his home. He
pledges that the excessive use of alcohol will not
reoccur.
When he was before the trial committee of the Bar in April of 1952 he explained
his
misconduct by pointing out that it occurred
"during a period of stress, drinking and carelessness." Since his
disbarment he has been engaged in a variety of activities,
including work as a longshoreman, selling automobiles, and the preparation of
income tax returns for others. Through affidavits and responses to
questionnaires a number of persons have attested to his
good moral character and to his exemplary conduct since his
disbarment. A real estate broker and an accountant with whom he has been associated
testified to
[***4] his industry, sobriety, trust-worthiness and
good moral character generally. There are also supporting affidavits of other persons, including
three members of the Oregon State Bar, one of whom was the prosecutor in the
initial proceeding before the trial committee. Five reputable persons who
answered the Board of Governor's
questionnaire stated that they considered him to be a man of
good character. Petitioner points to his record as an attorney for a period of approximately
20 years, which he contends
[*360] is unblemished but for the brief interlude of
misconduct for which he was
disbarred. The foregoing represents the substance of the petitioner's contention. The
Board of Governors concluded that
"The
applicant, William E. Koken, has not proved by any satisfactory evidence or by
any affirmative showing to the satisfaction of the Board of Governors, and it
does not appear to the Board of Governors, that he is a person of
good moral character, or that he has the moral qualifications requisite to accept the obligations
and perform the
duties of an attorney in the State of Oregon, or that his
reinstatement or admission will not be detrimental to the integrity and standing
[***5] of the bar and the administration of justice, nor subversive to the
public interest."
The petitioner argues that if the evidence submitted in this case is not good
enough to establish
rehabilitation, then
rehabilitation can never be proved in any case. He asserts that
"good moral character can only be defined as absence of proven conduct or acts which have been
historically considered as manifestations of moral turpitude." But we thing that it is our
duty to apply a stricter test of
rehabilitation. It is possible that if we were to
restore the petitioner to his former position in this bar he would never again violate
his public
trust, but we would not discharge our obligation to the community if we should
rest our decision in this case upon that conjecture. We are entitled to have a
reasonable assurance that the
misconduct which brought the petitioner before this court once before will not
reoccur. We recognize that
disbarment does not preclude
reinstatement, but we believe that
reinstatement should be allowed only in very exceptional cases. We endorse
[**896] the thought expressed in Drinker on Legal Ethics (1953) at page 49, as follows:
"* * * While it is, of course,
[***6] always possible
[*361] that a
disbarred lawyer may be
reinstated, this, it is believed, should almost never occur except where the court
concludes that the
disbarment was erroneous. For a lawyer who has been
found guilty of an act warranting
disbarment to be
reinstated justly creates an impression on the public which is very bad for the
reputation of the bar, the conclusion being that this is because of friendship,
pity, or political influence; which is not infrequently the case. * * *"
It has been recognized that stronger proof of
good character is required to
restore a
disbarred lawyer than that required upon his admission to the Bar.
In re Petition of Morrison, 45 SD 123, 186 NW 556 (1922);
Kepler v. State Bar of California, 216 Cal 52, 13 P2d 509 (1932). But whether we treat the petitioner's case as one of
reinstatement or one of admission, our
duty is essentially the same, i.e., to protect the public and the other members of
the legal profession.
In re Schmalz, 169 Or 518, 129 P2d 825 (1942);
In re Moynihan, 166 Or 200, 111 P2d 96 (1941);
In re Weinstein, 150 Or 1, 42 P2d 744 (1935);
Ex parte Finn, 32 Or 519, 52 P 756 (1898);
Feinstein v.
[***7] State Bar of California, 39 Cal2d 541, 248 P2d 3 (1952);
People ex rel Chicago Bar Association v. Goodman, 366 Ill 346, 8 NE2d 941.
It is not enough to say that a petitioner has been sufficiently punished. Our
concern is not with the punishment of the petitioner. We must determine
whether the public and the Bar will be served if he is permitted to
practice law. We do not feel that we would discharge our public
duty if we should permit the petitioner to
practice law in this state at the present time.
During a considerable part of the petitioner's professional life he has been in
financial difficulty. The
[*362] pressure of
financial need caused him to violate the law which eventually resulted in his
disbarment. He is still in financial trouble. His application for permission to take the
Bar examination and for
admission to practice law reveal that as late as December 3, 1957 he was not meeting his financial
obligations. In answer to one of the questions in the application form he
confesses that he was discharged in bankruptcy in April 1953; that
in 1955 a judgment in favor of a loan company was obtained against him, and
that in 1957 judgments were obtained against
[***8] him by a credit bureau and a credit agency. There is danger that this
continuing pressure of
financial need may again lead the petitioner to violate the law and his professional trust.
He solemnly
pledges that he will not succumb to this
temptation, but under the circumstances we are of the opinion that we should not impose
upon the public the risk that he may violate this
pledge. As stated in
Petition of Morganstern, 85 Cal App 113, 259 P 90, 92 (1927)
"it would be unfair to the
public interest to order a readmission except upon a
feeling,
bordering upon conviction, that he has forever put under foot the
temptations of the past." We do not have that
"feeling,
bordering upon conviction" in this case. Contributing to our doubt is the knowledge that once before
petitioner proved
himself unworthy of belief. As indicated in
In re William E. Koken, supra, at page 668, a member of the Oregon Bar, before employing the petitioner, obtained his
promise that he would not again issue
worthless checks. The promise was violated. There is danger that the promise he now
makes to the Bar as a whole, and to the public, will also be violated. As long
as that danger exists, the petitioner
[***9] is not entitled to
practice law in this state. Petition denied.
